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Zong v. Lynch

United States District Court, E.D. Pennsylvania

July 24, 2017

RAYMOND ZONG, Plaintiff,
v.
MERRILL LYNCH/BANK OF AMERICA, Defendant.

          MEMORANDUM

          Tucker, C.J.

         Before the Court are Plaintiff Raymond Zong's Complaint (ECF No. 1), Defendant Merrill Lynch's Motion to Dismiss Zong's Complaint (ECF No. 26), Plaintiff, Raymond Zong's Response Against Merrill Lynch's Motion (ECF No. 27), and Plaintiff's Supplements to Zong's Response (ECF No. 28). Upon consideration of the Parties' submissions, Defendant's Motion to Dismiss is GRANTED and Plaintiff Raymond Zong's Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The present lawsuit is the second lawsuit that Plaintiff has brought against his former employer, Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”), for claims relating to Merrill Lynch's alleged racial discrimination and retaliation against Plaintiff. The Court ultimately concludes that the present suit is barred by the doctrine of res judicata because Plaintiff's prior suit ended in a final judgment on the merits, the prior suit was brought against the same defendant, and the prior suit involved the same cause of action that is at issue in the present suit.

         A. Prior Suit: Zong v. Merrill Lynch, Pierce, Fenner & Smith Inc., a wholly-owned subsidiary of Bank of America, No. 13-3256

         1. Underlying Facts: Alleged Discrimination and Retaliation

         Plaintiff is Chinese and his native language is Chinese. Second Am. Compl. ¶ 14, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Nov. 13, 2013), ECF No. 9; see also Pl.'s Resp. in Opp. to Mot. to Dismiss ¶ 3, Zong v. Merrill Lynch/Bank of America, No. 14-6010 (E.D. Pa. Oct. 23, 2014), ECF No. 27 (explaining that Plaintiff's native language is Chinese). In 2006, Merrill Lynch hired Plaintiff as a financial advisor. Second Am. Compl. ¶ 12, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Nov. 13, 2013), ECF No. 9. Beginning in 2010, Plaintiff's white coworkers allegedly began harassing Plaintiff because of his race. Id. at ¶ 13. Among other things, Plaintiff's colleagues directed Plaintiff not to speak Chinese with his clients despite the fact that Plaintiff's job duties often required him to speak Chinese with many of his Chinese-speaking clients. Id. at ¶¶ 17, 22; see also Pl.'s Resp. in Opp. to Mot. to Dismiss ¶ 3, Zong v. Merrill Lynch/Bank of America, No. 14-6010 (E.D. Pa. Oct. 23, 2014), ECF No. 27 (explaining that Plaintiff held the title of International Financial Advisor and was authorized to speak Chinese with his clients). Indeed, Plaintiff's manager allegedly acknowledged that Plaintiff's coworkers may have been intentionally harassing Plaintiff. Second Am. Compl. ¶ 24, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Nov. 13, 2013), ECF No. 9. Although Plaintiff reported this and other incidents of alleged hostility and harassment to Merrill Lynch, Merrill Lynch purportedly did nothing. Id. at ¶ 25.

         On February 15, 2012, Plaintiff filed a charge with the Equal Employment Opportunity Commission alleging that Merrill Lynch engaged in discrimination based on race and national origin. Id. at ¶ 33. After Plaintiff's filing, Merrill Lynch transferred Plaintiff to a new office location away from the coworkers who had been harassing Plaintiff. Id. at 5 ¶ 34. Despite the transfer, Merrill Lynch allegedly continued to discriminate against Plaintiff in a variety of ways. Id. at ¶¶ 35-37. As a result of this alleged discrimination, on April 2, 2012, Plaintiff resigned. Id. at ¶ 38.

         On June 12, 2013, Plaintiff filed a complaint against Merrill Lynch alleging that Merrill Lynch engaged in, among other things, race discrimination and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000, et seq. Compl. ¶¶ 18-25, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. June 12, 2013), ECF No. 1.[1] After some time, the Parties agreed to explore settlement options, and the case was referred to United States Magistrate Judge Richard A. Lloret to conduct a settlement conference. Order, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. June 4, 2014), ECF No. 32.

         2.Settlement Agreement and September 22, 2014 Entry of Final Judgment

         On June 23, 2014, the Parties appeared for a settlement conference before Judge Lloret. Min. Sheet, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. June 24, 2014), ECF No. 35. During the settlement conference, the Parties reached a mutually-agreeable, final settlement and placed their agreement on the record. See Mem. Op., Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Sept. 22 2014), ECF No. 57 (summarizing result of settlement conference). The next day, Plaintiff contacted Judge Lloret by email in an attempt to renege on the settlement agreement. Id. Plaintiff sought to renege on the agreement because his attorney purportedly misled Plaintiff during the settlement conference. Id. at 2-3.

         After Plaintiff refused to honor the settlement agreement, Merrill Lynch filed a Motion to Enforce Settlement. Merrill Lynch's Mot. to Enforce Settlement, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. June 30, 2014), ECF No. 39. The Parties stipulated to Judge Lloret's jurisdiction. Consent, and Reference of a Civil Action to a Magistrate Judge, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Sept. 4, 2014), ECF No. 55. Judge Lloret then ordered that the Parties appear for a hearing on the Motion to Enforce Settlement. After the hearing, on September 22, 2014, Judge Lloret issued an Order (“September 22 Order”) and Memorandum Opinion whereby he granted the Motion to Enforce Settlement and dismissed Plaintiff's case with prejudice in accordance with the Parties' on-the-record settlement agreement. Mem. Op., Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Sept. 22, 2014), ECF No. 57; Order, Zong v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 13-3256 (E.D. Pa. Sept. 22, 2014), ECF No. 58. Plaintiff appealed the September 22 Order.

         On December 1, 2015, the United States Court of Appeals for the Third Circuit affirmed the September 22 Order. See generally Zong v. Merrill Lynch Pierce Fenner & Smith, Inc., No. 14-4239 (3d Cir. Dec. 1, 2015). Plaintiff then sought to appeal the Third Circuit's decision to the United States Supreme Court by Petition for Writ of Certiorari. On April 24, 2017, the United States Supreme Court denied Plaintiff's Petition for Writ of Certiorari. Zong v. Merrill Lynch Pierce Fenner & Smith, Inc., 137 S.Ct. 1812 (2017).

         B. Present Suit: Zong v. Merill Lynch/Bank of ...


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